About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 56
|
|
N.M v MEC for Health Limpopo (1659/2017) [2018] ZALMPPHC 56 (12 September 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
CASE
NO: 1659/2017
In
the matter between:
N
M PLAINTIFF
AND
MEC
FOR HEALTH
LIMPOPO DEFENDANT
JUDGMENT
KGANYAGO
J
[1]
The plaintiff has issued combine summons against the defendant
claiming R1 100 000-00 for alleged professional negligence
by the hospitals’ doctors and nursing staff at the various
hospitals that treated the plaintiff.
[2]
The defendant has entered notice of intention to defend the
plaintiff’s action. The defendant raised the first exception
against the plaintiff’s particulars of claim. The plaintiff
amended her particulars of claim. After effecting the amendment,
the
defendant raised the second exception on the plaintiff’s
amended particulars of claim.
[3]
According to the defendant, the plaintiff’s amended particulars
of claim still failed to rectify the complaint that the
plaintiff’s
particulars of claim are vague and embarrassing, and further that
they did not disclose a cause of action.
[4]
The defendant contends that the plaintiff’s particulars of
claim lacks the averments that are necessary to sustain a cause
of
action, and also that they are vague and embarrassing to an extent
that the defendant is unable to plead. The defendant further
submit
that it is unable to ascertain the case it has to meet. The plaintiff
on the other hand contends that it has cured the complaints
that the
defendant has raised in its first exception. The plaintiff submits
that what the defendant is now raising are technical
issues which can
be cured by evidence.
[5]
An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal validity.
(See
Trope and Others v South African Reserve
Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269 I).
A
court will not uphold an exception on the ground that it is vague and
embarrassing and set aside the summons unless the exception
goes to
the root of the action. (See
SA Motor
Industry Employers’ Association v SA Bank of Athens
1980 (3) SA
91
(A)).
[6]
Rule 18 (4) of the Uniform Rules of Courts (“the Rules”)
reads as follows:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto”
[7]
In order to succeed an excipient has a duty to persuade the court
that upon every interpretation which the pleading in question
can
reasonably bear, no cause of action is disclosed; failing which the
exception ought not to be upheld.
[8]
The defendant submit that it is confusing and embarrassing for the
plaintiff to state in her particulars of claim that she was
admitted
for a tibia-fibila fracture on her right leg and ankle and that
X-rays were taken, and was placed in a cast, whilst on
the other hand
she alleges that she was left wondering of her progress as the
diagnoses and the treatment were not discussed with
her. The
defendant further state that failure by the plaintiff to allege how
she learned about the nature of her injury renders
her particulars of
claim to be vague and embarrassing, and also lack averments that are
necessary to sustain a cause of action.
The defendant further state
that the plaintiff’s failure to state the dates on which she
was discharged from various hospitals
renders her particulars of
claim to be vague and embarrassing. The defendant further state that
it is confusing to them as to which
hospital had allegedly put the
cast on the plaintiff. The defendant further state that the plaintiff
has failed to state the treatment
she had received which according to
them is material in a medical negligence claim. The defendant further
states that the plaintiff
had made contradictory allegations in her
particulars of claim. The defendant further state that the plaintiff
has failed to state
the alleged damage caused by the doctors and
nursing staff at various hospitals, and therefore, that renders the
plaintiff’s
particulars of claim not to disclose a cause of
action.
[9]
Plaintiff state in her particulars of claim that on the 18
th
November 2014, the doctor at Musina Hospital had informed her that
her leg had healed properly and thereafter removed the cast
on her
leg. The plaintiff further state in her particulars of claim that on
the 10
th
February 2015 she went to Musina Hospital with severe pains and
swelling on the leg. She was referred to Tshilidzini hospital where
she was told that her leg had not healed properly and that the bone
growth of the fracture had not re-attached straight as it should
have. On the 07
th
May 2015 a physiotherapist told him the same thing that she was told
at Tshilidzini hospital. She was thereafter admitted at Tshilidzini
hospital for four days. She further state that after she was
discharged from Tshilidzini hospital she went for several follow up
treatment until she was told that it was no longer necessary to
attend the hospital anymore. However, she states that to date she
has
not fully healed. In her particulars of claim she also state what the
doctors should have done, but failed to do.
[10]
In
Living Hands v Ditz
2013 (2) SA 368
(GSJ)
at para 15 Makgoka J said:
[15]
Before I consider the exceptions, an overview of the applicable
general principles distilled from case law is necessary:
(a)
In considering an exception that a
pleading does not sustain a cause of action, the court will accept,
as true, the allegations
pleaded by the plaintiff to assess whether
they disclose a cause of action.
(b)
The object of an exception is not to
embarrass one’s opponent or to take advantage of a technical
flaw, but to dispose of
the case or a portion thereof in an
expeditious manner, or to protect oneself against an embarrassment
which is so serious as to
merit the costs even of an exception.
(c)
The purpose of an exception is to
raise a substantive question of law which may have the effect of
settling the dispute between
the parties. If the exception is not
taken for that purpose, an excipient should make out a very clear
case before it would be
allowed to succeed.
(d)
An excipient who alleges that a
summons does not disclose a cause of action, must establish that upon
any construction of the particulars
of claim, no cause of action is
disclosed.
(e)
An over-technical approach should be
avoided because it destroys the usefulness of the exception
procedure, which is to weed out
cases without legal merits.
(f)
Pleading must be read as a whole and
an exception cannot be taken to a paragraph or a part of a pleading
that is not self-contained.
(g)
Minor blemishes and unradical
embarrassments caused by a pleading can and should be cured by
further particulars.”
[11]
In the present case, the plaintiff has stated which hospital was the
last to admit her, which hospitals she was transferred
from, and
ultimately which hospital has told her that she had fully recovered.
Thereafter she stated when she became aware that
she had not fully
recovered and what happened thereafter. That in my view is sufficient
to disclose a cause of action. The mere
fact that the plaintiff has
failed to state the dates on which she was discharged from hospital,
the number of days spent in hospital,
and the treatment received can
be cured by requesting further particulars for the purposes of trial.
[12]
The complaint that the plaintiff have used words or sentences in her
particulars of claim such as ‘aforementioned hospital’,
‘such as surgery’; ‘conservative treatment’
and ‘instead’ are all technical complains that
does not
strike at the formulation of the cause of action. The defendant seems
to complain about specific parts of the paragraphs
without reading
the pleadings as a whole. In my view, the defendant has failed to
establish that upon any construction of the plaintiff’s
particulars of claim, no cause of action has been disclosed. The
plaintiff has averred sufficient averments that are necessary
to
sustain her cause of action. Therefore, the defendant’s
exception has to fail.
[13] In the result I make
the following order:
13.1
The defendant’s exception is dismissed with costs.
_________________________
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
For
Plaintiff
: Adv S Schnehage
Instructed
by
: Erwee Attorneys
For
Defendant
: Adv FPW Modjadji
Instructed
by
: State Attorney Polokwane
Date of
Hearing
: 8
th
August 2018
Date of
Judgment
: 12
th
September 2018